Reflecting upon the reality of modern families - does the approach of English family law to parenthood live up to this?

Reflecting upon the reality of modern families – does the approach of English family law to parenthood live up to this?

By Meg Gibson

Legal parenthood endures beyond the child turning 18. It creates wider family relationships and generates legal consequences such as succession rights and potential liability for child support. However, a question arises as to whether the current approach in English law lives up to the realities of modern families. The default position of English law seems to be an appeal to to a biological connection; the woman who gives birth to the child, the mother, automatically acquires parenthood. Yet unmarried fathers are not automatically given legal parenthood, and certain statutory requirements must be passed before parents of surrogate children are recognised. The law needs to adopt a more modern approach to parenthood that deals competently with the issue of surrogacy and multiple parent families. Otherwise, it is at risk of not recognising the reality of developments in technology and society.

Unmarried fathers

Issues have arisen in the case-law in relation to the position of fathers. There is no obligation for fathers to be registered as the father on the birth certificate of the child; only the mother has that obligation under section 2 of the Birth and Death Registration Act 1953. Unmarried fathers are consequently in a particularly vulnerable position. The father has no independent right to register. The mother’s cooperation and joint attendance, or a court order, is required for his name to appear on the birth certificate. Based on this, it would seem that English law is failing to live up to the reality of modern families. As more children are born outside of marriage or civil partnerships (47.7% as of 2015),1 surely the law should recognise this in relation to who is granted parenthood?

The Welfare Reform Act 2009, which was passed by Parliament but never brought into force, would have required the mother to provide information about the father to the registrar subject to certain specified exceptions. Under Schedule 6, she would be required to name the father unless she or the child would be put in danger if he were named, or she did not know the name of the father. In certain circumstances, provisions would also have been made for a man to initiate his registration by declaration as the father, provided the information was confirmed when the mother registered the birth (section 2D). Scientific tests would be utilised to establish paternity, with the consent of the mother and the alleged father.

Whilst superficially, this appears to recognise more fairly the rights of the father, it must also be examined in relation to the burden placed on the mother. As acknowledged by Munby J in Re L [2007],2 “we can reason with someone in the mother’s position. We can seek to persuade. But we should not seek to force or coerce.” [41] Although there is an importance in recognising the parenthood of an unmarried father, this must be counterbalanced with the interests of the mother. There is a clear burden placed on the mother in requiring them to provide details of the father or name them when registering the birth of the child. Although this Act would have provided an exception for woman who did not know who the father of the child was, in cases where the mother knows but the child was simply the result of a one-night stand, the mother may not wish to name him on the birth certificate. In Florida, women were required to place advertisements in newspapers to find the father of their children, which was deemed to be too onerous. As in Re L, it was not considered justified to force or coerce the mother, even if doing in would be in the child’s best interests.

Thus, whilst the current approach may fail to capture the realities of modern families in relation to unmarried fathers, the onus that would be placed upon the mother by legislation such as the unenforced Welfare Reform Act would risk being too great. In light of the exceptions that the Welfare Reform Act would have listed, the loss of control the mother would have had over the birth registration process would have been more symbolic than real. However, this might have been an important assertion of the equality of parenthood; the law would have taken steps towards reflecting the fact that men play significant roles as parents too.

But the 2009 Act would not have given the right of any man to effect a sole registration; it merely would have given a legal obligation on both parents to register. In this respect, it can be argued that the law as it currently stands does not necessarily deprive the father of parenthood if he wishes to have it. It can be acquired through the consent of the mother, or if this is refused, through a court order. The shift away from the pater est presumption that the husband of a mother is always the father in Re H and A (Paternity: Blood Tests)3 highlights again that the focus has shifted away from upholding the ‘traditional family unit’ in favour of the child knowing the truth of their genetic origin. The Court of Appeal made it clear that paternity was not to be established by science and not by legal presumptions. There would be few cases where the child’s best interests would be served by suppressing the truth. Yet it must be noted that Hedley J took the view in Re D (Paternity)4 that the order for tests could be stayed without a temporal limit, but there would be liberty to restore this order in the future when the child was ready.

Based on these developments, it seems the law is moving in the direction of reflecting the reality of modern families. Removing the pater est presumption helps move society away from the traditional concept of a family, which is fast becoming outdated in our society. But the heavy focus placed upon genetics to establish parentage does stymy the measures that can be taken towards recognising the equality of parentage. This is especially apparently in relation to assisted reproduction and multiple parent families, which consider social parenthood.

Assisted reproduction and surrogacy

The Human Fertilisation and Embryology Act 2008 makes advances on its predecessor, the HFEA 1990, by widening the circumstances in which legal parentage can be conferred on those who are not the biological parents of the child. It would extend the provisions in the 1990 legislation that gave legal parentage to the husband of a married woman or male partner of a woman receiving fertility treatment to women in civil partners and lesbian couples. These provisions hinge on the consent being given to the parentage by both parties and this must not have been withdrawn at the time when the embryo or gametes are placed in the woman, or she is artificially inseminated (section 35 for the father, section 42 for the wife or civil partner). If they are not married, or the husband/wife/civil partner does not consent, then the fatherhood conditions (s.36-7) or motherhood conditions (s.43-44) apply.

This legislation seems advances developments in IVF treatments, recognising the role that this now plays in society. The Act increases the circumstances under which biological parentage is divorced from legal parentage, suggesting a move towards social parenthood. Whilst this may be reflective of the modern reality where an intention to be the parent of a child should take primacy (especially in cases of assisted reproduction and surrogacy), it is at odds with the principle of biological truth that is widely accepted in the determination of paternity. The question therefore becomes whether we should still favour this genetic connection, or if more focus should be placed on intentions.

Bainham5 is critical of the Human Fertilisation and Embryology Act insofar as it extends the status of legal parenthood to wider range of individuals who do not have any biological connection with child. He thinks that parental responsibility would suffice for the parents who do not have a genetic connection, as to make them a legal parent would be inappropriate, since it would distort and misrepresent kinship. The biological father would drop out of the legal picture, as would all of the paternal family.

While it is true that the paternal family would drop out of the legal picture, it seems strange to see this as being an issue in cases of assisted reproduction. The father does not have the intention to be the parent of the child, whereas the second mother does. It would arguably be in the greater interests of the child’s welfare for them to have a connection with the second mother’s family, rather than with a father’s family who would likely be absent from their life. The law as it stands, where the child would have no legal father, requires the treatment centre to assess the prospective mother’s ability to meet the child’s needs and the ability of the other persons within the family or social circle willing to share responsibility for these needs. In respect of modern family, this seems at odds with reality. A biological father, for example, would not have to prove their ability to meet the child’s needs in the case of a natural birth. We should move away from this historically entrenched concept of a child having one legal mother and one legal father; it does not reflect the social reality of the our society today, as a society that now embraces same-sex marriage and same-sex adoption.

Multiple parent families

English law currently only permits a child to have two ‘parents’ (people with parenthood). Recently, we have seen an increasingly recognition of reproductive rights, illustrated by the technological developments and the HFEA 2008. Yet we are still operating under a very fundamental and traditional assumption that a child only has two parents. There might in fact be multiple people who want to or intend to act as the child’s parents. Jackson6 has been critical of the law’s assumption that a child can only have two parents. She argues that the law has been stymied by the principle of parental exclusivity. There are naturally downsides to recognising multiple people as having parenthood, such as increased litigation, uncertainty, and whether the consent of the natural parents would be required.

However, considering the fact that more than two people can acquire parental responsibility for a child, it would be fair to say that it would be difficult to know when to stop if legal parenthood was not limited to two people. There is the proverb that it takes a ‘village to raise a child’, but how many people need to be recognised as the legal parents for this? Parental responsibility confers numerous responsibilities onto a person, without the legal consequences of parenthood being necessary.

Whether we agree with Jackson’s view is dependent on whether we think that the modern reality of parenthood is that more than two parents need to be recognised. There may be multiple people who want to or intend to be recognised as the child’s legal parent. In California, the court can allocate parenthood to more than two people where it would be detrimental to the child to limit it. Similarly, in Ontario, in AA v BB [2007],7a lesbian couple had a child with the assistance of a male friend; only the woman and the father were recognised as the parents, not the second mother. She argued it doesn’t to reflect the child’s reality that there are only two parents, which the court agreed with. Based on this, English law does not seem to be accepting the reality of modern families where children might in fact have more than two people that should be recognised as the parents. Although there is potential for this to lead to increased litigation, the court should focus on whether it is in the child’s best interests for multiple people to be recognised as their legal parent, in order to accept the reality of their situation.

Conclusion

English law has certainly developed towards embracing the modern reality of family in our current society. However, there is still a clear focus on promoting the traditionally entrenched concept of genetics and two parent families. This is increasingly outdated as technological developments in assisted reproduction are made and attitudes towards same-sex couples have changed.

Callus8 argues for a new parenthood paradigm in which both the social parent and the biological progenitor could be appropriately be recognised. This could remove ancient legal technicalities which burden the institution of parentage, whilst privileging parenthood, thereby connecting legal and social responsibilities. Parentage would be confined to the biological link, without conferring any legal status onto the progenitors. Parenthood would constitute a legally recognised relationship formed from the intention ‘to parent’. Biology can provide a default link, in the absence of any other manifestation of parental intention.

This would be an appropriate step to take, to recognise the shift towards parents who may not be genetically related the child, but who in all other senses would be like a biological parent. More focus should be given on who intends to act as a parent and what is in the best interests of the child, rather than who happens to have a genetic link.